The Feed (Sampling and Analysis and Specified Undesirable Substances) (Scotland) Regulations 2010

Made: 6th October 2010

Laid before the Scottish Parliament: 8th October 2010

Coming into force: 15th November 2010

There has been consultation as required by section 84(1) of the Agriculture Act 1970 with such persons or organisations appearing to represent the interests concerned and as required by Article9 of Regulation (EC) No.178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety[^f00003].

PART 1 — General and introductory

Citation, extent and commencement

1

These Regulations may be cited as the Feed (Sampling and Analysis and Specified Undesirable Substances) (Scotland) Regulations 2010, extend to Scotland only and come into force on 15thNovember 2010.

Interpretation

2

• (1) In these Regulations—

• “the Act” means the Agriculture Act 1970;

• “Regulation 152/2009” means Commission Regulation (EC) No.152/2009 laying down the methods of sampling and analysis for the official control of feed[^f00004];

• “the Feed Hygiene Regulations” means the Feed (Hygiene and Enforcement) (Scotland) Regulations 2005[^f00005];

• “the GM Feed Regulations” means the Genetically Modified Animal Feed (Scotland) Regulations 2004[^f00006];

• “analyst” means an agricultural analyst or deputy agricultural analyst.

• (2) Any expression used in these Regulations and Regulation152/2009 has the meaning that it bears in Regulation152/2009.

• (3) Any reference to a numbered section is a reference to the section so numbered in the Act as modified by these Regulations.

Prescribed metric substitution

3

For the purposes of its application to feeding stuffs, the Act is to be read as if—

• (a) in section68(2)(b) (duty of seller to give statutory statement), “to sales in quantities of not more than 25kilograms” was substituted for “to sales of small quantities (that is to say, sales in quantities of not more than fifty six pounds or the prescribed metric substitution)”; and

• (b) in section76(5) (inspector’s power to enter premises and take samples), “six kilograms” was substituted for “fourteen pounds or the prescribed metric substitution”.

PART 2 — Miscellaneous requirements relating to sampling and analysis

Methods of sending a final sample

4

Any final sample required to be sent to any person pursuant to—

• (a) paragraph8 of AnnexI to Regulation152/2009;

• (b) section77(1) or (2) (division of samples and analysis by agricultural analyst);

• (c) section78(1)(a), (2) or (4) (further analysis by Government Chemist);

• (d) regulations30(1), (2) or (5) (procedure relating to samples for analysis) or 31A(2) (secondary analysis by the Government Chemist) of the Feed Hygiene Regulations; or

• (e) regulation6(1)(a)(i) or (ii) (application of various provisions of the Act) of the GM Feed Regulations,

may be sent by any appropriate method or delivered by hand.

Qualifications of analysts

5

The prescribed qualifications for an analyst for the purposes of section 67A(7) (agricultural analyst and deputy agricultural analyst qualifications) in so far is it relates to feeding stuffs and the required qualifications for a person analysing feed for the purposes of the GM Feed Regulations are that—

• (a) the person must—

• (i) be a Chartered Chemist or possess a Mastership in Chemical Analysis awarded by the Royal Society of Chemistry; and

• (ii) be a Fellow or Member of the Royal Society of Chemistry; and

• (b) the person’s practical experience of the examination of feed must be attested by an analyst appointed under section 67A(2)(a) (appointment of agricultural analysts and deputy agricultural analysts).

Analysis other than in the course of official controls

6

• (1) Where a sample of feed is to be analysed pursuant to—

• (a) section75(1) (sample analysed at the request of the purchaser); or

• (b) section78(1) (further analysis by Government Chemist) in so far as that section does not relate to official controls,

the method of analysis shall be the appropriate one, if any, set out in Regulation152/2009.

• (2) In cases where there is no appropriate method of analysis in Regulation152/2009, the analysis shall be carried out in the manner referred to in Article 34(2)(a) or, as appropriate, (b) of Regulation (EU) 2017/625 of the European Parliament and of the Council of 15 March 2017 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products, amending Regulations (EC) No 999/2001, (EC) No 396/2005, (EC) No 1069/2009, (EC) No 1107/2009, (EU) No 1151/2012, (EU) No 652/2014, (EU) 2016/429 and (EU) 2016/2031 of the European Parliament and of the Council, Council Regulations (EC) No 1/2005 and (EC) No 1099/2009 and Council Directives 98/58/EC, 1999/74/EC, 2007/43/EC, 2008/119/EC and 2008/120/EC, and repealing Regulations (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament and of the Council, Council Directives 89/608/EEC, 89/662/EEC, 90/425/EEC, 91/496/EEC, 96/23/EC, 96/93/EC and 97/78/EC and Council Decision 92/438/EEC.

Form of certificate of analysis

7

The certificate of analysis of any feed to be sent pursuant to—

• (a) section77(4) (analysis by agricultural analyst);

• (b) regulation30(4) (procedure relating to samples for analysis) or 31A(3) (secondary analysis by the Government Chemist) of the Feed Hygiene Regulations; or

• (c) regulation6(1)(a)(i) (application of various provisions of the Act) of the GM Feed Regulations,

must be in the form set out in Schedule 1 and must be completed in accordance with the notes to that Schedule.

PART 3 — Amendment and modification of other legislation with regard to sampling and analysis

Amendment or modification of the Act

8

The Act is amended or as the case may be modified in accordance with regulations9 to 20.

Section66 of the Act

9

In section66(1) (interpretation of PartIV), insert at the appropriate place the following definitions:—

• “final sample” has the meaning that it bears in Annex I to Regulation 152/2009;

• “Regulation 152/2009” means Commission Regulation (EC) No. 152/2009 laying down the methods of sampling and analysis for the official control of feed;

Section68 of the Act

10

Section68 (duty of seller to give statutory statement) in so far as it applies in relation to feeding stuffs applies as if—

• (a) in subsection(4)(b) “final sample” were substituted for “sampled portion”; and

• (b) in subsection(5)—

• (i) “final sample” were substituted for “sample taken from the portion in question”; and

• (ii) “in accordance with Regulation 152/2009” were substituted for “in the prescribed manner”.

Section69 of the Act

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section70 of the Act

12

Section70 (use of names or expressions with prescribed meanings) in so far as it applies in relation to feeding stuffs applies as if—

• (a) in subsection(2) “final sample” were substituted for “sampled portion”; and

• (b) in subsection(4)—

• (i) “final sample” were substituted for “sampled portion”; and

• (ii) “that sample” were substituted for “the sample taken from that portion”.

Section71 of the Act

13

Section71 (particulars to be given of certain attributes if claimed to be present) in so far as it applies in relation to feeding stuffs applies as if—

• (a) in subsection(2)(b) “final sample” were substituted for “sampled portion”; and

• (b) in subsection(3)—

• (i) “final sample” were substituted for “sampled portion”; and

• (ii) “that sample” were substituted for “the sample taken from that portion”.

Section73 of the Act

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section73A of the Act

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section75 of the Act

16

Section75 (purchaser’s right to have sample taken and analysed), in so far as it applies in relation to feeding stuffs, applies as if in subsection (1) “in accordance with Regulation 152/2009” were substituted for “in the prescribed manner”.

Section76 of the Act

17

Section76 (inspector’s power to enter premises and take samples) in so far as it applies in relation to feeding stuffs applies as if—

• (a) in subsection(1) “in accordance with Regulation 152/2009” were substituted for “in the prescribed manner”; and

• (b) for subsection(4) the following were substituted:—

(4) Without prejudice to any other power or duty as to the taking of samples, an inspector may for the purposes of this Part of this Act take a sample of any material which has been sold for use as a feeding stuff or which he has reasonable cause to believe to be intended for sale as such.

Section77 of the Act

18

Section77 (division of samples and analysis by agricultural analyst) in so far as it applies in relation to feeding stuffs applies as if—

• (a) for subsection (1) the following were substituted:—

(1) Where an inspector has taken a sample and prepared and packaged final samples in accordance with Regulation 152/2009 the inspector, in addition to sending a final sample to the agricultural analyst for the inspector’s area in accordance with the requirements of paragraph 8 of Annex I to that Regulation— (a) shall send one final sample— (i) where the sample was taken pursuant to the request of a purchaser under section 75 of this Act, to the seller or his agent; (ii) in any other case, to the person on whose premises the sample was taken, or, if the person on whose premises the sample was taken purchased the material in question for use and not for resale, to the seller or his agent; and (b) subject to section78 of this Act, shall retain at least one final sample for nine months.

• (b) for subsection (2) the following were substituted:—

(2) If the person who manufactured any material of which an inspector has taken a sample as mentioned in subsection (1) is not a person to whom a final sample is required to be sent under that subsection, the inspector shall send a final sample to the manufacturer unless he does not know and is unable after making reasonable inquiries to ascertain before the expiration of fourteen days from the date when the sample was taken— (a) the manufacturer’s name; or (b) any address of the manufacturer in the United Kingdom.

• (c) in subsection(3)—

• (i) “final sample” were substituted for “part of a sample”; and

• (ii) “in accordance with Regulation 152/2009” were substituted for “in the prescribed manner”; and

• (d) in subsection(4)—

• (i) “final sample” were substituted in each case for “part of a sample” or “part of the sample” as the case may be;

• (ii) “subsection (1)” were substituted for “subsection (1)(a)”;

• (iii) “in such manner, if any, as may be prescribed” were omitted; and

• (iv) in paragraph (b) “subsection (1)(a)(ii)” were substituted for “subsection (1)(b)(ii)”.

Section 78 of the Act

19

Section 78 (further analysis by Government Chemist) in so far as it applies in relation to feeding stuffs applies as if—

• (a) in subsection (1)—

• (i) for paragraph (a) the following were substituted:—

(a) to send the final sample retained by the inspector under section 77(1)(b) of this Act (as that provision is modified by regulation 18(a) of the Feed (Sampling and Analysis and Specified Undesirable Substances) (Scotland) Regulations 2010) (“the retained sample”) to the Government Chemist for analysis;

; and

• (ii) in paragraph (b) “retained sample” were substituted for “remaining part” and “that sample” were substituted for “that part”;

• (b) in subsection (2)—

• (i) “in accordance with Regulation 152/2009” were substituted for “in the prescribed manner”;

• (ii) in paragraph (a)(i) “retained sample” were substituted for “remaining part of the sample”;

• (iii) in paragraph (a)(ii) “retained sample, whether that sample” were substituted for “remaining part, whether that part”; and

• (iv) in paragraph (b) “the retained sample” were substituted for “that remaining part”;

• (c) in subsection (4)—

• (i) “in accordance with Regulation 152/2009” were substituted for “in the prescribed manner”; and

• (ii) “retained sample” were substituted for “remaining part of the sample”;

• (d) in subsection (5)—

• (i) “part of a” were omitted;

• (ii) in paragraph (a) “part of the” were omitted; and

• (iii) in paragraph (b) “the retained sample” were substituted for “the part”; and

• (e) in subsection (6)—

• (i) “in such manner, if any, as may be prescribed any part of” were omitted; and

• (ii) “the sample” were substituted for “the part”.

Section 79 of the Act

20

Section 79 (supplementary provisions relating to samples and analysis) in so far as it applies in relation to feeding stuffs applies as if in subsection (3)—

• (a) “is specified by Regulation 152/2009 or” were inserted after “quality of any material”; and

• (b) “the method so specified or prescribed” were substituted for “the method prescribed”.

Amendment of the Feed Hygiene Regulations

21

• (1) The Feed Hygiene Regulations are amended in accordance with paragraphs (2) to (6).

• (2) In regulation 2(1) (interpretation)—

• (a) omit the definition of “point 4 compliant laboratory”;

• (b) for the definition of “prescribed manner” substitute—

• “prescribed manner” means the manner prescribed by Regulation (EC) No. 152/2009 of the European Parliament and of the Council laying down the methods of sampling and analysis for the official control of feed or otherwise in accordance with Article11(1) of Regulation 882/2004;

; and

• (c) omit the definition of “sampled portion”.

• (3) For regulation 29 (application of various provisions of the Feeding Stuffs (Sampling and Analysis) Regulations 1999[^f00009]) substitute—

(29) (1) Subject to paragraph (3), an enforcement authority must appoint one or more agricultural analysts in connection with the performance of its duty under regulation 16 (enforcement). (2) An agricultural analyst appointed under paragraph (1) must have the qualifications prescribed in relation to the Act by regulation 5 of the Feed (Sampling and Analysis and Specified Undesirable Substances) (Scotland) Regulations 2010. (3) An agricultural analyst already appointed by an enforcement authority pursuant to section 67(3)(b) of the Act is deemed to be appointed for the purposes of paragraph (1).

• (4) In regulation 30 (procedure relating to samples for analysis)—

• (a) for paragraph (1)(b) substitute—

(b) send one part for analysis to the agricultural analyst for the area of the enforcement authority from which the authorised officer derives authority;

• (b) for paragraph (3) substitute—

(3) The part of the sample sent to the agricultural analyst must be accompanied by a statement signed by the authorised officer confirming that the sample was taken in the manner prescribed by law.

; and

• (c) in paragraph (4) omit “or as the case may be the point 4 compliant laboratory”.

• (5) In regulation 31 (additional provisions relating to sampling and analysis)—

• (a) in paragraph (2) omit “or the analyst at the point 4 compliant laboratory as the case may be”; and